Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston Federal Judge chastises United States Attorney For Misconduct

The chief judge of the Boston ‘s local United States District Court is threatening to sanction a federal prosecutor for what he characterized as the latest “egregious failure” of the United States Attorney’s office to disclose evidence that could have helped clear a defendant. Undisclosed, the result could lead to a wrongful conviction.

Chief District Court Judge Mark L. Wolf said in a sharply worded memorandum that Assistant US Attorney Suzanne Sullivan failed to disclose that a Boston police officer’s testimony at a pretrial hearing contradicted what the officer had repeatedly told the prosecutor beforehand. The defendant, a Mattapan man arrested on gun charges in July 2007, is still awaiting trial.

Wolf said the truth about the circumstances of the arrest came to light only when he reviewed Sullivan’s notes of her interviews of the police officer, Rance Cooley. The judge wants Sullivan and her boss, US Attorney Michael J. Sullivan, who are not related, to file affidavits by February 5th explaining why he should not sanction her, the US attorney’s office, or both.

“The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government’s duties to disclose in cases assigned to this court,” Wolf, a high-ranking prosecutor in the office in the 1980s, wrote in his 42-page ruling.

He listed at least nine major cases he presided over during the last two decades in which prosecutors working for Michael Sullivan and his predecessors allegedly withheld important evidence. In several instances, the jurist, 62, wrote, the misconduct led to mistrials and convictions that were overturned.

In an extraordinary rebuke of the office in July 2007, Wolf asked the Bar Counsel of the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against a veteran federal prosecutor, Jeffrey Auerhahn, who allegedly withheld key evidence in a New England Organized Crime case from the early 1990s. That matter is pending, according to the Bar Counsel.

On Monday, Michael Sullivan said in a statement that Suzanne Sullivan was a “valued member” of the office but that “we, of course, take seriously the issues raised by the court.” He said he was reviewing the matter and would file a response.

Probable translation? She’ll take the fall and twist in the wind on this one.

“The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court’s in camera inspection,” Wolf wrote. “Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of, or utter indifference to, the constitutional duty she repeatedly claimed to have understood and obeyed.”

Citing court precedents, the judge mentioned several possible sanctions against Suzanne Sullivan ranging from a fine to an order to attend an ethics seminar.

Attorney Sam’s Take:

The case at issue here was a gun case. Like most possession cases (be it drugs or guns), the chief witness to the possession is usually law enforcement.

This is a part of the criminal justice experience you do not hear about all that often. I have seen these issues play out from both the prosecutorial side (from my days in the Brooklyn District Attorney’s Office) as well as from the defense side in the approximately 20 years since here in Boston.

Law enforcement investigates the cases. Normally, a defense attorney is not involved until that investigation is finished, or near finished, and the defendant is arrested. While, thereafter, the defense can, and does, conduct its own investigation, it is “after the fact”. Therefore, the only details, other than what the client can sometimes tell, can only be gotten by what the prosecution furnishes.

This should not be a big problem.

After all, the prosecution’s duty is supposed to be to “do justice”. This is supposed to supersede the adversarial temptation of “just win”. Given that, one would imagine that prosecutors, next to cleanliness (which is next to godliness), freely share all the information.

But it is a big problem.

Because prosecutors are not saints. They are human. Further, they are humans with bosses who create “office policy”. As advocates, they want to win and believe they should win because they are prosecuting “bad guys”. As employees, they do not want to be fired…particularly in this economy.

Prosecutors can make mistakes. Mistakes in overlooking things. Mistakes in judgment. Mistakes in blindly following “office policy”.

The problem is that these mistakes ruin lives. People go to jail. Sometimes guilty people…sometimes innocent people.

There are three particular areas that make this situation so serious. First of all, the credibility of any government witness is paramount, since it is the source of much of the information given to the defense…and the jury. This is especially true when that witness is a police officer, since it is often that officer who is either the sole witness to certain events or, at the very least, the one who gathers and forms the evidence that ends up being presented. If that officer is found to have reported the same incident in various inconsistent ways…it is important to know for obvious reasons.

The other two aggravating factors in this case have less to do with this particular Assistant United States Attorney, but more with “office policy” and the laws concerning federal criminal trials. In the federal system, a great deal of discovery (the package of witness statements the prosecution gives to the defense to prepare for trial) is usually given over shortly before the trial actually begins. Therefore, as it is, it is difficult to consume all the material and fully prepare for trial on time. If that material is incomplete or misleading, it cannot help but deprive the accused of a fair trial. What makes the Boston U.S. Attorney’s situation even more troubling is that this type of occurrence, as Judge Wolf observes, has happened many times. I would even go out on a limb and suggest it could have happened at times we do not even know about. After all, not all judges are as sensitive to this problem as is Judge Wolf. The question must be asked, “What is the real office policy here?”

This is but another example, as if you needed any, why you need an experienced attorney who knows what to look for in preparing a case. Simple every-day logic is not enough. Your lawyer needs to know what to look for…even if it is not there.

Maybe even especially if it is not there.

The full articles of this story can be found at http://www.boston.com/news/local/massachusetts/articles/2009/01/27/judge_chastises_federal_attorney?s_campaign=8315

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